August 22, 2006

Not A Good Theory of Judging

--Sebastian

I'm not going to try to do an independent analysis of the recent NSA ruling when it has been done so well elsewhere (see especially Volokh and Althouse). In the fray, I noticed a post by a prominent legal scholar (and blogger) Jack Balkin which exhibits many of the characteristic attitudes toward the judiciary which I find troubling.

The secret advantages of Judge Taylor's opinion in ACLU v. NSA

Marty and I have noted the problems with Judge Taylor's opinion, even though we both agree that it reaches the right result. Why did Judge Taylor rush out such a sloppy opinion in the way she did? Some people have speculated that it was to hog all the glory for herself. But that's not the only possible reason. Judge Taylor has been on the bench for many years, and, presumably, she knows how the appellate process works. In this post, I try to show that strategically, at least, Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal.

Judge Taylor knew that most of other lawsuits challenging the NSA program were being consolidated in California, and hers might be as well. She might have wanted to ensure that the 6th Circuit got to pass on the NSA case in addition to the 9th Circuit. The more circuit courts that passed on the case, the greater the chance that one of them would hold the way she thought the case should come out, and present a favorable record on appeal to the Supreme Court. But more important, she might have noted that the Supreme Court regularly reverses the 9th Circuit, and that the judges on the 6th Circuit might do a better job with the case, or, at the very least, their work would be viewed with less skepticism by the Justices.

Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal.

Judge Taylor's opinion did both of these things in her opinion. First, she raised as many claims on the merits as she could think of, even if her analysis skated over the surface and didn't provide the best arguments for both sides. This puts the Justice Department in an interesting position. The DOJ takes the view that courts can't possibly resolve the legal issues on the merits because state secrets are involved. But because of Judge Taylor's scattershot approach, it will have to make arguments on appeal showing why her arguments are wrong on each issue; that will undercut its claim that the legal issues can't be disposed of without revealing privileged information.

...

But here's where Judge Taylor's rather innovative First Amendment argument comes into play. To win on standing, plaintiffs need not win on the merits; they need only show that they raise colorable claims of rights violations that injure legally protected interests that courts can remedy. The first amendment argument-- that the secret program chills protected expression and association-- is not a very good argument in its current form, but it is a colorable argument. It will take some work to defeat it. And that fact helps secure the plaintiffs' standing. By making what is not a particularly good argument about the First Amendment, Judge Taylor enabled the 6th circuit to address what is really the best argument-- that the NSA program violates Congressional law, in particular FISA.

Judge Taylor's opinion isn't really very good as a discussion of the merits. But district court judges know that this isn't the only thing that matters....

This line of argument is very troubling. I would be much happier to hear that Taylor's decision was the result of incompetence or some sort of righteous anger at the NSA program. It certainly looks that way to me (Not because of the final conclusion which is fairly debatable, but because of the shoddy legal reasoning to get there).

Ann Althouse exactly captured my thinking when she wrote:

I'm not talking about the normal way judges write result-oriented decisions, which is to layer in the scholarly and neutral-looking verbiage in the hope that most people will swallow it and the critics will seems like sore losers. This opinion -- beginning midway through the text -- does not even look like a rough draft. It seems as if the judge ran out of time and handed in something that was less than an outline. Much less.

That result-oriented decisions she describes are bad enough, what Balkin is suggesting is far worse than that.

Appellate Courts aren't supposed to review a trial court's finding on purely factual issues. Balkin is suggesting that Judge Taylor is attempting to use that to shape the appellate issues even though the legal reasoning is behind the decision is awful. He is also suggesting that Judge Taylor made findings on more factual issues than she needed to for that same reason.

He admits, on multiple posts, that the legal reasoning is poor, but thinks that Judge Taylor may have been attempting to secure the desired outcome by manipulating the record in other ways--and he seems to think this a good thing (the title of his post is "The secret advantages of Judge Taylor's opinion in ACLU vs. NSA").

That strategy (bad legal reasoning paired with nearly unreviewable manipulation of fact-finding to achieve a desired outcome) is exactly the opposite of how we should want judges to perform their duties. We want neutral fact-finding and solidly logical reasoning. Ironically, if Balkin is correct, Taylor is doing exactly what we fear the Administration is doing in the torture area--throwing up silly legal arguments and manipulating knowledge of unreviewable facts.

Balkin is an excellent analyst, but this time I hope my initial analysis of the opinion was more accurate than his.

Comments

I suggest people look beyond Volokh and Althouse for a full analysis of the ruling, since both provide only a certain ideological perspective. Althouse esp. has been repeated criticized for having empty reasoning. Volokh less so, but clearly leans a certain way. Gleen Greenwald, for instance, provides different commentary.

Balkin et. al. suggests this is a value to the reasoning. All the same, they have written much more on the ruling. This honestly unfounded on facts assumption also must be taken with a grain of salt. Reading thru the opinion, personally, it also might be deemed libelous. The bad faith suggested is not proven by any degree.

Also, the ruling argues there are some undebated facts here. If her judgment is wrong, the appellate court can overrule. They will look at things de novo. Likewise, some have noted (esp. in comments) that it looks like the gov't did a poor job defending itself. This is not the judge's fault.

Finally, this trope that somehow this opinion is so uniquely badly reason is just that. Again, others, including various lawyers, reject the assumption it is badly reasoned tripe. Ann has a bad track record as a neutral judge in this department, so again, why should we rely on her?

Orin Kerr (on Volokh) is an expert on 4th amendment issues. He doesn't in fact think the NSA program is legal but he still thinks the opinion was bad. Volokh is the same. Balkin doesn't even think the opinion is well reasoned. Tribe doesn't even think the opinion is well reasoned. Greenwald doesn't even think it is well reasoned. You don't have to rely on Althouse for the idea that the opinion was poorly reasoned. Greenwald and Tribe seem to classify it under fake but accurate.

I hope Sebastian will apply the same rigor to Bush v. Gore. Results-oriented opinion!

And, by decree of the judges decidign it, it only applies to the case of Bush v. Gore -- at least Taylor has to let the opinion be general.

Bush is President because of a sloppily reasoned results-oriented opinion, but the majority forced that faux-reasoning never to be used again--just used to let Bush be installed.

Wanna talk about eviscerating the moral authority of the judiciary? I can't see "apply this rule only to this case" as doing anything more than that.

Taylor is going to be appealed, and possibly overruled.

Bush v. Gore gave us President George W. Bush. With no generalizable logic other than "we have a majority of judges on the SC."

Spare me your crocodile tears about "This line of argument is very troubling. I would be much happier to hear that Taylor's decision was the result of incompetence or some sort of righteous anger at the NSA program. "

Boo hoo hoo. Scalia could have reasoned and written it better, if he were so inclined.

If he's so inclined and he can't reason or write it better, maybe he'll just say "it only applies to the outcome I seek" and Sebastian will be mollified. The anti-libertarian republicans will have one again!

I don't think "fake but accurate" comes anywhere close to Greenwald's or Tribe's position. "Correct on the most important matters, increasingly slipshod on peripheral ones", perhaps.

As for "unreviewable facts", that's scarcely Judge Taylor's fault. If you have a concern about it, I'm sure the Republican National Committee and the White House counsel would be delighted to discuss it. I mean, to tell you to stop bothering them.

We all have our own priorities, of course, but I tend to agree with Glenn G. that the judicial finding of sustained felonious violation of FISA and unconstitutional justification for it are more important than weak parts of the ruling. Are we going to get any discussion of the meat of the thing, or just confirm Glenn's comments about having more fun straining at gnats and swallowing camels?

Publius of Legal Fiction, who apparently has appeals court experience, has been completely outraged by this decision, and has attacked the decision and judge in multiple posts. Charleycarp showed up in comments at least once.

Does it count as a subject change at this point if I discuss the original post? I think it's an interesting question -- if a judge knows what the "correct" result is in a case, to what extent is s/he justified in attempting to game the system to make it more likely that that result will ultimately prevail?

In a perfect world, all parties would be conscientiously working towards discerning the best result independent of bias, and so I agree with Sebastian that ideally no judges would be doing this. But in the real world, interested parties are generally doing whatever they can to win, so for an individual judge to stay neutral is perhaps something like unilateral disarmament. If you're sure that X is genuinely the right answer in a case but you see a real possibility that political forces will lead to result Y instead, I think it's at least arguable that gaming the system is justified.

Not that Balkin has me convinced that that's what happened here (but then again, what do I know, not being a lawyer).

Ummm...hate to be pedantic again, but Sebastian's post is the topic. If you're suggesting that a main post can be off-topic, you're going to threadjack this baby into a meta discussion that will result in the entire universe exploding simultaneously at the speed of light. Trust me, you do not want to go there.

I'm not aware of any evidence that Judge Taylor was attempting to insulate her decision from reversal on appeal, and frankly the suggestion that she would do so runs against my experience. I'm not saying that district judges like to be reversed, but rather that unless they are ignoring controlling precedent -- and sfaik no one is suggesting Judge Taylor did that -- they're much more likely to assume that their decision will be accepted.

I'm not seeing in the various critiques any comparison between this opinion and Judge Taylor's other work -- especially from this year (when the first drafts would have been written by the same clerks). I think that's directly relevant to the question of whether one can draw any inferences at all from her style.

And Slart, I view this whole line as misdirection. Is the surveillance program in violation of FISA and the Fourth Amendment? Yes. Who cares how well a district judge has explained that? Not the Sixth Circuit. If any of her factual findings are clearly erroneous, they'll get reversed. If they're not, I don't see any reason for a fuss about them.

I agree with CharleyCarp on the question of whether the main post can be a change of subject (or misdirection, if you prefer).

On the other hand, kenB's comment "But in the real world, interested parties are generally doing whatever they can to win, so for an individual judge to stay neutral is perhaps something like unilateral disarmament." strikes me as truly off base. The judge is by her role supposed to be a neutral party; that is why they are granted the power to decide cases. It is a fair argument to say that such a view does reflect reality, citing instances of judicial activism on both sides, such as blatherskite's comment on Bush v. Gore. But saying a judge should be on the same level as an interested party in framing arguments for their side is simply wrong.

The judge is by her role supposed to be a neutral party; that is why they are granted the power to decide cases

I'm mostly just playing devil's advocate, but: what if the judge, in her capacity as a neutral party and using only her discerning wisdom and knowledge of the law, determines that the correct result is X but sees that political or other forces may well produce result Y down the road? Is there no imaginable situation like this where you would ever say that she was justified in taking a more pragmatic approach to try to ensure that result X holds up in the end?

" what if the judge, in her capacity as a neutral party and using only her discerning wisdom and knowledge of the law, determines that the correct result is X but sees that political or other forces may well produce result Y down the road? Is there no imaginable situation like this where you would ever say that she was justified in taking a more pragmatic approach to try to ensure that result X holds up in the end?"

Not really to me. If the political or other forces are operating in manner which is part of the system (i.e., Congress changing the law so that result Y and not result X is the proper decision), then those forces must be respected. If they are improperly trying to oveturn the rule of law, then it is proper to fight them, but the fight must be above board, not below.

On the other hand, if the judge believes that the appellate court will be improperly influenced (a phrasing which leaves open everything from bribery to predetermination of the issues based on politcal beliefs) to decide for result Y, then I doubt there is much the lower court judge can do in writing her opinion to ensure that result X prevails before the appellate court.

I don't understand the controversy over the wording of the opinion. Frankly it seems like a manufactured bout of distracting hysteria over what is really a very simple finding: The fourth amendment requires warrants for searches, FISA provides a mechanism for obtaining those warrants (short-circuiting arguments from necessity), and the Bush administration failed to get warrants. Ergo, the Bush administration is in violation of both the constitution and FISA. The particular nature of that violation also has chilling effects on free speech, so they are also in violation of the first amendment.

I think the first amendment violation is a little problematic, but it's completely unambiguous that the administration violated the fourth amendment[*]. How anyone who can read is able to conclude otherwise is beyond me. That the people claiming there is wiggle room in the clearly-worded fourth amendment are often the same ones claiming the clumsy wording of the second is absolutely clear is an amusing irony.

Kerr is usually very agressive about updating/correcting himself. I don't see backpedaling. Balkin has been following the case, so I don't see his criticism of the reasoning to be problematic either.

But in any event, it is what Balkin is suggesting in the post I quote that I find especially troubling. It is improper as a matter of law for a judge to manipulate the system in the way he describes. (I'm not saying that Taylor does so, I think she just made a badly written decision). Worse, it is the opposite of the role judges are supposed to fill in our society.

SomeCallMeTim, Dantheman and others suggest that this post is "subject changing". I'm not trying to separately analyze the decision because that is being done all over the internet by lawyers and professors far smarter than me. I don't have the time (and quite possibly not the ability) to usefully contribute to that.

The judicial philosophy discussed in Balkin's defense of the decision is something I can speak to, is coming from a widely respected scholar on the topic, is troubling, and is a good example of the kind of judicial philosophy which turns me off to the Democratic Party.

It represents a concern that you can see in all sorts of posts that I have made here and elsewhere for years. See for example System of Laws, Judicial Interpretation, or here, or here from my old site. (Don't bother too much with the comments. I had an awful spam attack on that site which I couldn't correct because trying to do so tended to crash typepad). Also see my thoughts on Executive overreach here .

Basically the proper role of judges in the system is an area of interest to me. You could say to katherine: "there are more important things in the world than documenting a handful of people who may have been tortured by the US government" but that is her area of long-term interest. This is mine area of interest, and the Balkin post is an especially clear example of what I find troubling about the trends of thought on the issue by prominent thinkers in the Democratic Party.

Re KenB's point, I think that a judge has a number of ways of making his/her feelings known, such that it is not simply a case of choosing X over Y. IANAL, so these examples are more anecdotal, so take with NaCl please.

You have the scene in Gandhi where Judge Broomfield rises on Gandhi's entry, which I don't know if that corresponds to actual history, but the judge did write to the effect of what Trevor Howard said.

Metting out a guilty verdict along with a light sentence is also a way to subvert the message of result X. Again, this is just anecdote, but here in Japan, drunk driving is really dealt with severely, and I understand that this was not always the case. What happened (and here, I am going to have to check with some colleagues) one judge or several judges began issuing coordinated decisions that highlighted the vagaries of the punishment regime. This led to a big push that has made drunk driving a real social no no so that if you are written up, you lose your license for a minimum of 30 days with the lower charge (.25ppm) and for a full year with the upper charge (inability to control the car, regardless of your blood alcohol level)(even though I have heard of stories of cops looking the other way)

In addition, the way fines are deployed can often be used to make a statement. Leon Uris wrote _Exodus_ and was sued by for libel. He lost, but the judge gave damages of one half penny, essentially taking result X and making it result Y.

Additionally, the coram nobis decisions in the Korematsu and Hirabayashi cases related to the Internment of Japanese-Americans, which concluded that withheld evidence vacated the decisions, could be considered along these lines, in that the judge was arguing that the legal underpinning of the case was rendered void by questions of evidence. The judge also made a statement by delivering her verdict in some minimal amount of time, making it clear that she had already written her decision (which was accompanied by a speech prewritten) before the end of the trial. I think that these sorts of little signals can serve to reinforce/undermine particular decisions and I'm sure that judges use them to varying degrees.

Togolosh, I'm not at all certain that the 4th Amendment requires warrants in the off-shore cases regarding national security (not criminal liabilty) cases that we are talking about. FISA is a separate issue. It is very possible for the taps to be a violation of FISA and yet still be constitutional (in the sense that if FISA were changed, the taps would not be unconstitutional).

"The judicial philosophy discussed in Balkin's defense of the decision is something I can speak to, is coming from a widely respected scholar on the topic, is troubling, and is a good example of the kind of judicial philosophy which turns me off to the Democratic Party"

But somehow the judicial activism of Bush v. Gore, or of the dissenters in Kelo does not turn you off the Republican Party. Why is that?

I continue to be more interested in the question of whether the President is committing felonies and instructing others to do so than in whether some parts of a judge's opinion are less than they should be. The core of Judge Taylor's opinion seems to be anchored in both fact and law, and it's the part that we're apparently not going to get any discussion of. People on the left (and genuine rather than fake libertarians) will say, yes, this supports what's been obviously the case for a while now. People ont he right will attack our patriotism, competence, and (it now turns out) rhetorical style, but not address the point. So the President will get away with it once again.

I've addressed both before, and in some cases (though not Kelo) it does. What turns me off in Bush v. Gore is what the Supreme Court did to avoid the 5-4 decision. The Bush v. Gore judicial situation in the lower courts (especially the second time around) is a whole 'nother topic.

So, do you believe that judges should be encouraged to do what Balkin suggests? Are you accusing me of being a hypocrite, or of being wrong?

I agree. This reminds me of last year's hoo-hah about Amnesty International labeling our network of illegal detention and torture sites a gulag. Anything to avoid discussing the merits of the Bush Administration's illegal conduct.

Sebastian,

Hypocrisy. You are suggesting that liberal judicial activism bothers you much more than conservative judicial activism. This suggests that the judicial activism is not your real concern, but rather that the decision made is liberal and not conservative.

As to the Kelo dissent, to me it is as blatant an example of judicial activism at the Supreme Court level I recall since the dissent in the flag-burning case in the 1980's. There is no support for the dissenters position in the statutory language, nor in the numerous prior decisions of the Supreme Court allowing similar condemnations for construction of private commercial buildings, nor in the history of the takings clause, which was used to condemn property for private gain within a small number of years following the adoption of the Bill of Rights for private canals and toll roads. So why does it not bother you?

1. The Fourth Amendment doesn't say that it applies to criminal investigations and not to national security investigations.

2. The decision would undoubtedly have been much better written if the government had made a serious effort to present a case on the merits.

3. I don't approve any more than Sebastian of judges artificially slanting a decision to withstand appellate review. I don't think there's evidence that this is what happened here, and don't think Balkin's better placed to say so either.

4. I am absolutely certain that Katherine would write the same posts, and take the same positions, if Kerry had won the election and was engaging in rendition etc. Or Gore the election before. It's a standard few can meet, and I don't fault Sebastian for not, imo, meeting it either. I would be more convinced that Sebastian could be mentioned in the same sentence as Katherine in this regard if he dropped his pervasive charges of bad faith towards the other side.

Is this problematic? Yes, I think it is, but it doesn't start with Judge Taylor's reasoning; it started with the administration's policy. The corner cutting Balkin cites most convincingly is in usi8ng the First Amendment claims to establish standing. This is in response to the fact that the Executive Branch crafted a policy that was plainly illegal, but for which it was extremely difficult, if not impossible, to establish standing without such an effort.

While I agree with Sebastian in general that this isn't good judging, I disagree with him on the specific case. I find the idea that there are policies that are crafted such that it is impossible to challenge them far, far more offensive than the idea that a judge will engage in some craftiness in order to allow such a challenge.

"Hypocrisy. You are suggesting that liberal judicial activism bothers you much more than conservative judicial activism. This suggests that the judicial activism is not your real concern, but rather that the decision made is liberal and not conservative."

I wonder about this style of argument. Say I don't like rape. Does the fact that long term molestation of a child bothers me even more than a one-time acquaintance rape suggest that I'm not REALLY concerned about rape? Now I'll freely admit that I've used that style of argument before, but maybe I was wrong to.

It seems perfectly possible that I could have serious reservations about process in a constitutional system and yet be more personally annoyed by process failures that lead to conclusions I don't like than those that I do.

Take for example a person A who has reservations about the death penalty because they are afraid an innocent person will get executed. If a person C is executed and A is certain (for whatever reason) that C is guilty, does A being bothered less mean that he doesn't really have reservations about the death penalty? Or does it mean that reservations about the death penalty are located in the middle of a host of other concerns?

CharleyCarp, "I would be more convinced that Sebastian could be mentioned in the same sentence as Katherine in this regard if he dropped his pervasive charges of bad faith towards the other side."

Isn't a bit ironic that you can decry charges of bad faith at the end of a comment thread which has consisted largely of charging me with being in bad faith? Under the logic exhibited in this thread should I suspect that you don't really care about charges of bad faith....

It is very possible for the taps to be a violation of FISA and yet still be constitutional (in the sense that if FISA were changed, the taps would not be unconstitutional).

This reminds me of Gonzo's argument that just because FISA says it provides "exclusive" means that doesn't actually suggest that Congress intended for it to be the "sole" means.

Sebastian, if your intention is to argue against results-oriented jurisprudence in general, you aren't doing yourself any favors by making observations that are totally tangential to the question at hand (aka a "straw men" aka "sleight-of-hand jurisprudence").

Not clear enough? Lets play it out and pretend that the law were changed -- FISA repealed and replaced with, say, something called the ASIF act, which legitimizes any warrant obtained via the signature of any single federal judge presiding at any level.

If ASIF is found unconstitutional and overturned, then obeying it would still constitute a violation of the 4th. If ASIF were constitutional, and the administration disobeyed it, there would still be a 4th Am violation. Similarly, if the law were not changed, and the administration obeyed FISA, there would be no 4th Am violation. Where does that leave us exactly?

Your observation is very amusing but it contributes exactly nothing to the conversation. You might as well ask us to discuss the controversy surrounding the legalization of bank robbery. Lines of people with guns, stretching all the way around the block! Long wait times at the ATM! Ponies for everyone! All strictly legal, of course.

You go to court with the laws you have, not the laws you wish you had.

"If ASIF is found unconstitutional and overturned, then obeying it would still constitute a violation of the 4th. If ASIF were constitutional, and the administration disobeyed it, there would still be a 4th Am violation. Similarly, if the law were not changed, and the administration obeyed FISA, there would be no 4th Am violation. Where does that leave us exactly?

Your observation is very amusing but it contributes exactly nothing to the conversation. You might as well ask us to discuss the controversy surrounding the legalization of bank robbery. Lines of people with guns, stretching all the way around the block! Long wait times at the ATM! Ponies for everyone! All strictly legal, of course."

The problem with your argument is that the 4th Amendment specialists are not particularly convinced that the program is a violation of the 4th Amendment (see especially Kerr). Many more of them are convinced that the program is a violation of FISA (see especially Kerr and Volokh).

So I'm not being totally crazy when I suggest that the program might not be a 4th amendment violation but may be a violation of FISA. This suggests that (contra your example) if FISA were amended to allow the practice, it would not be a 4th amendment violation.

Togolosh, according to Jonathan Turley (via), the manufactured hysteria (such as Sebastian's post) is all because no one wants to look at this:

If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order.

Naturally, Sebastian doesn't want to discuss the problem of a Republican President who has apparently committed multiple felonies while in office, and whose administration and party have been seriously arguing that it is perfectly okay for the President to commit felonies like this if he wants to and anyway it's not a felony if it's... oh, I forget the current excuse, or set of excuses. Much better to make trivialising attacks on the lesser details than try to deal with the big issue. The pattern of attack for the Bush administration when damaging information about Bush becomes available is not to bother defending, but to attack someone else, as viciously as possible: there are many, many examples of this, and no doubt Judge Taylor will end up being a hissing and a byword to everyone who wants to see Republicans continue in power and therefore does not want to see Bush impeached for multiple felonies - or Bush issuing a record number of pardons to the government workers who obeyed instructions and committed the felonies.

Sebastian is just one example, and - as one might expect from a conservative like Sebastian - a fairly moderate and reasonable example. Pity it's in such a bad cause: if Sebastian really thinks Bush's felonies aren't that bad, it would be interesting to see how he defends them.

"I wonder about this style of argument. Say I don't like rape. Does the fact that long term molestation of a child bothers me even more than a one-time acquaintance rape suggest that I'm not REALLY concerned about rape? Now I'll freely admit that I've used that style of argument before, but maybe I was wrong to."

The hole in this argument stems from your initial comment about the depth of your revulsion to liberal judicial activism. You find that liberal judicial activism turns you off the Democratic Party, while it presumably does not turn you off the Republican Party. A better analogy to your feelings would be if you felt that the necessity of punishing the molester led you not to punish the rapist at all.

Do you believe there are no actions a judge should take to increase a decisions chances of being upheld? Or is this particular strategy (as outlined in your post) uniquely offensive?

This is an honest question.

[quote]
Take for example a person A who has reservations about the death penalty because they are afraid an innocent person will get executed. If a person C is executed and A is certain (for whatever reason) that C is guilty, does A being bothered less mean that he doesn't really have reservations about the death penalty? Or does it mean that reservations about the death penalty are located in the middle of a host of other concerns?
[/quote]

Bahh - don't buy it. Somebody who consistently abandons what they claim is a deeply held principle when the shoe is on the other foot is lying about the depth of thier commitment to the principle.

"Do you believe there are no actions a judge should take to increase a decisions chances of being upheld? Or is this particular strategy (as outlined in your post) uniquely offensive?"

Judges should make clear decisions and outline tight legal reasoning to increase a decision's chances of being upheld. In my view, intentionally making an unclear decision to increase the chances of being upheld is not legitimate (but I suspect happens all the time). Manipulating the role of fact-finder is even worse.

If if if. Gah. Kerr's argument, like yours, is strictly academic. I'm not even going to bother rereading Volokh. FISA has not been amended and Gonzo is not the Supreme Court. FISA provides the exclusive means by which "the practice" can be undertaken in compliance with the 4th Amendment. Period.

Violations of the procedure provided by FISA are, by definition, violations of a 4th amendment right. And this is not a bunch of emanations and penumbras crap either; this is an enumerated right. Any procedural constraints placed on the obtainment of warrants are backed explicitly and immediately by the Constitution, and any violation of those procedural constraints is a violation of a constitutional right.

Change the procedural constraints and you change what constitutes a violation, but so what? Just because it's possible to change the procedural constraints in a way which would eliminate this particular violation it's not a violation? It's also possible to change the law such that bank robbery becomes legal. You still have to wait for the law to pass, and then wait for it to take effect before you rob the bank (and then of course you have to wait in line all morning anyway).

I didn't suggest you were crazy -- I suggested that the position you're defending is true, but entirely irrelevant not only to the question of whether Diggs Taylor's ruling was "activist" in any way shape or form but also to the question of whether "the practice" violates anybody's 4th Am rights.

JFTR I found publius' critique of Greenwald entirely persuasive, but again, it's academic, not practical.

2. The decision would undoubtedly have been much better written if the government had made a serious effort to present a case on the merits.

Methinks Charley has a very good point here. As much as Publius is concerned about the lack of factual record - the lack of factual record is a direct result of the government's intentional conduct, and when you do that, all kinds of bad rhings happen to you. To put it in layman's terms, that type of intransigence usually ends up with the judge employing his/her whupping stick, often with results that might seem overly harsh if you aren't familiar with the pattern and practice of a case.

All that said, I'm not convinced it's a great opinion (like Kerr, I feel that the statutory argument is both the strongest and least controversial. In the context of this case I don't buy the 1st Amendment at all in the absence of a factual record - it's a plausible claim, but probably prematurely decided.

And all that all that said - the "jackalope" point is also a good one. Ignore the President breaking the law (which at this point, any honest observer will say "duh,") and focus on the judge.

Finally, as noted in the first comment in the thread, taking an Althouse claim about vacuous legal reasoning seriously is a recipe for disaster.

"The hole in this argument stems from your initial comment about the depth of your revulsion to liberal judicial activism."

I don't see it. Liberal judicial activism is what initially caused me to notice the problem (when I was younger). I'm sure I thought at the time that the "liberal" modifier was unnecessary. Growing up and investigating it further, I found that there is such a thing as conservative judicial activism. But reversing liberal judicial activism isn't it (see for example Roe and unbounded takings).

A classic example of conservative activism (in this instance a joint venture of administrations and the judiciary) in my mind would be the dramatic expansion of asset forfeiture concepts in concert with the drug war.

Depending on how you analyze Miranda, Scalia's attack on it could be considered activism.

It may very well be that I am more attuned to liberal judicial activism. That really isn't a very devastating critique of the idea that judges have a more limited proper role than they currently enjoy.

"That really isn't a very devastating critique of the idea that judges have a more limited proper role than they currently enjoy."

No, but it is a critique of the idea that it is a problem which is a deal breaker for you as to the Democrats, but not as to the Republicans. If it is a deal breaker for you as to any party, it should be as to both, especially given the level of outrage the Republicans have raised against the Kelo decision.

Parts of the ruling aren't so good - some because the government passed up opportunities to make a case, some because the judge didn't do the best job possible. Sebastian is sad. We grieve for Sebastian's sorrow.

Now how about the primary finding? Are we going to get any posts calling for taking the finding of felonious activity seriously? Is anyone at all apart from those nasty rude boiz and gurrrlz of the obvious out-of-bound left-wing blogosphere going to commit to anything like "if this is upheld (presumably all the way to the Supreme Court), there should be arrests and trials over it"?

I think it's perfectly obvious what must be done if the President has in fact committed a (or multiple) crime(s): nothing, because Bush is just going to ignore it, or because Democrats are in the minority. Or maybe there's some other reasoning at work, here.

Or, you could actually make a case for impeachment. Should be a piece of cake, no?

Me, I think I'll hang out and see what the government does on appeal, if anything. Maybe they'll just say "Yes, ma'am" and continue doing what they were doing in the first place. It's not as if anyone can catch them at it, after all.

conservative legal activism: we can start with 11th Amendment jurisprudence, wander over to the Slaughterhouse cases ... but I doubt anyone really wants to hear it.

political considerations in judging: federal judges don't operate in a vacuum! who knew?

given the conduct of the DOJ in various Gitmo proceedings, not to mention the DOJ's refusal to obey her own orders, Judge Taylor had ample reason to believe that DOJ could seek to flout her jurisdiction. If the opinion came out a little early because she had a sense that the DOJ might be preparing such a move (by, eg, consolidating the case outside her )circuit), we all suffer the consequences, but the blame lies primarily with DOJ.

"If the opinion came out a little early because she had a sense that the DOJ might be preparing such a move (by, eg, consolidating the case outside her )circuit)"

Do you think that issuing a ruling prematurely to avoid consolidation is appropriate judicial practice? It is one thing for the parties to try to avoid or aid consolidation, but isn't it a totally different thing for the judge to do so?

Even if the DOJ was forum shopping (which in my view would be inappropriate) is avoiding it by making a quick ruling an appropriate remedy? Maybe I'm misremembering, but I thought when we last had a discussion about forum shopping (in the context of toxic torts I think) you didn't seem to think it was worth worrying so much about.

you're misremembering. Especially with pharmaceutical litigation, there's something really crazy about the idea that different juries can reach completely inconsistent verdicts about the duties of the defendant to a whole class of people.

"prematurely" is a loaded word. she ruled only on the matters properly before her.

Slartibartfast: I think it's perfectly obvious what must be done if the President has in fact committed a (or multiple) crime(s): nothing, because Bush is just going to ignore it, or because Democrats are in the minority.

Under the logic exhibited in this thread should I suspect that you don't really care about charges of bad faith....

I'm not responsible for what any other commenter has said. I don't think 'bad faith' is an accurate description of your argumentation here -- and I think the sentence preceding what you quoted says as much. You point, as I under stand it, is 'if what Balkin says is true, I deplore it.' I join you in that, adding (a) I'm not sure one needs to accept that what Balkin says is true and (b) among the sins of judicial activism, those alleged in Balkin's piece, if true, are pretty small potatoes, considering the nature of the case and the record.

I can imagine -- I've said this elsewhere but not on this thread -- that the government might be relieved to have the case in its current posture, with review at the Sixth Circuit. It would beat submitting to discovery overseen by a district judge -- more or less the publius option. Quicker review of the standing issue, and the secrets issue, and they'll take a run at suggesting that, because the Fourth Amendment claim is fact-sensitive, even an affirmance on those grounds ought to be accompanied with a remand for trial on the merits.

Ironically, if Balkin is correct, Taylor is doing exactly what we fear the Administration is doing in the torture area--throwing up silly legal arguments and manipulating knowledge of unreviewable facts.

This may have been said upthread, but what I'm afraid of is that the administration is torturing people. Go figure.

"fake but accurate" ... sorry no. They think at times its poorly reasoned (which honestly I find unfair and again for some reason ipse dixit noted w/o context, as some comments note) but in no way do they say it's "fake." Sorry.

As to Kerr, he just can't come out and say that, actually. He keeps on saying things like he thinks various arguments are "weak," doesn't quite admit it is illegal. He bends over backwards not to do so. So, though yes he is overall fair, he comes off as biased too.

Apparently, his skills at civil pleading ... even the very basics ... analysis are not very "expert." See updates by GG cited. Althouse truly is a strange resource. Again, I have no idea why she should be used ... if she's an expert on anything, it appears to be federalism.

I'd toss in that I didn't find Tribe's comments totally convincing either. Thus, he wonders why the judge spent so much time on 1A matters, when the lawsuit by academics etc. clearly was brought in part specifically because of the 1A interests of the plaintiffs.

The whole dismissal of the opinion reeks of bias, which gets even some of its supporters overly defensive. It's rather sad and troubling too boot, esp. given the selective nature of the attack.

I wonder about this, about being strategic about what arguments you use in your decision....

Justice Stevens did not need to decide, in Hamdan, whether Common Article 3 applied as a matter of treaty obligation. Is it possible that he knew that deciding the case in the way that he did was the single most powerful thing he could do to deter the torture of prisoners? Is it possible that he chose to reach that issue for that reason?

I obviously don't know the mind of Justice Stevens, but it's certainly possible. He's pretty crafty....I'm NOT suggesting that his analysis of Common Article 3 is wrong or insincere. I'm saying that reaching the issue was a choice, and he may have been influenced by certain facts in making that choice.

SH: if Stevens had done that, would you consider it "results oriented" and wrong? Or is it only wrong if a judge holds something that she doesn't actually believe for crafty procedural reasons? Does the fact that one judge is a district judge and the other is a Supreme Court Justice make it more or less okay for them to be "results oriented."

I'm afraid I've completely backslid on the "results oriented"/"judicial activism" thing since law school. I think judges should seriously consider the possibility that someone is going to get killed or tortured because of their decision. Sometimes the law may require you to do that--but what if the law isn't completely clear? Or what if you've got a precedent that you think is actually wrong about what a treaty or statute says, or dishonestly applies the law to the facts--can you try a little harder to distinguish it? Are you supposed to be completely neutral and indifferent to the fact that a person's life is in your hands?

A lot of this isn't directly relevant to the NSA case, I know; I'm just curious what you think.

I don't know if Volokh or Althouse are considered legal heavy-hitters outside the blogosphere, nor whether they're reliable sources for the latest Bush/GOP talking points. So I don't know if they're simply giving their opinion or channeling the likely WH strategy on appeal.

Maybe the legal practitioners and scholars hereabouts can answer the following:

Can an appeal brief include criticisms of the lower judge's reasoning, or are they limited to restating the facts presented at trial, and arguing that a different decision should have been made based on facts or procedural grounds?

Can other parties file amicus briefs in which they criticize the reasoning behind the decision?

If criticisms of the reasoning behind the decision are allowable, on what grounds are they allowable? Do the appellants have to present citations backing up their criticisms, or can they basically just say "We believe the Judge's reasoning was in error"?

Much has been made by the critics of Taylor's not addressing certain factual or legal points. The response to that has been speculation that such factual or legal points weren't presented by the Administration's lawyers, and therefore the Judge couldn't address what hadn't been presented. Can the Administration's lawyers present those allegedly omitted factual or legal points in the Appeal Brief, or would that be considered new evidence?

I'm particularly interested in challenges to Taylor's statements regarding Presidential Powers, and how the President can't give himself authority outside Constitutional limitations. Since the arguments in favor of Bush's supreme authority are based, SFAICT, on lifting cherry-picked Constitutional phrases out of context (e.g., using the same Article II justifications that Lincoln used during the Civil War while ignoring the part of Article II which limited that authority to times of "invasion or insurrection") it'll be interesting to see if the SCOTUS goes along with Bush's cherry-picked Constitutional arguments.

An appeal to the SCOTUS will be a real nail-biter. Scalia, Thomas, Alito and Roberts are sure votes in favor of Bush. Alito, esp., was chosen precisely for his sympathy for greatly expanded Executive authority. And this SCOTUS has already shown it has no problem at all cherry-picking the Constitution in aid of results-driven decisions. Once again, Kennedy's likely to be the crucial swing vote.

1. In an appeal, you include a copy of the lower court's opinion in your appendix, and argue that it got the issues wrong (if you're an appellant) or either was right or other evidence in the record justifies the end result (if you're an appellee).

2. An appellant can argue either procedural or substantive errors. The court won't overturn a decision based on a harmless error, though. If there was a procedural ruling that was wrong, but does not change the ultimate outcome of the case, it will not be reversed.

3. Amici can argue whatever they like -- the principles the guide the court's ruling will stay the same.

4. You can say 'we believe the district court's ruling was in error' but unless you're prepared to explain why, based on the facts in the record, and an application of the law to those facts, don't expect to get anywhere.

5. The appeals court is going to care about applying the law to the record before it. It doesn't care so much about the reasoning in the district court. This is intensely frustrating for an appellant. I had a case where the appeals court said, essentially, 'Yes, you're right, the trial court used an analysis that was completely wrong for the situation. We think, though, that we like the result, and are prepared to adopt a rationale that no one really argued to us (but we found buried in one of the briefs submitted below)." Thanks a whole lot!

6. Ordinarily, an appellant cannot present facts in an appeals court that were not in the record below. There are some narrow exceptions. There's more leeway with legal arguments, but only a little: the point is that appeals courts are not supposed to be the first place that an issue gets hashed out. But you can take an argument for which you submitted a single sentence in a footnote in the district court and make a 40 page brief out of it on appeal. You can cite new authority, explain the point more thoroughly, and such.

7. I don't see the votes for rejecting Youngstown -- you'll recall that both Roberts and Alito spoke about it at some length at confirmation. Kennedy is not a vote for this sort of thing, particularly after Hamdan. The government must avoid litigation of the merits of its claims at all costs -- and I would not be surprised to see them take more or less the same line at the Sixth Circuit that they did at the district court: rest on standing and state secrets, and say little or nothing, directly, about FISA and the Fourth Amendments. I've been wrong about how the government deals with these cases before, most spectacularly wrt Hamdan. I thought it likely that once cert was granted, they'd just announce that they were going to try him under the UCMJ. There's no reason to get all wrapped up in how to try the goddam driver, in any case, and they'd have preserved their Geneva Conventions holding from the Circuit. Maybe the Luttig opinion in Padilla scared them off, or maybe they thought getting Lindsey Graham to pass that legislation would win for them. So they went for broke, and lost way more than they ever could have gained by winning.

Kerr and althouse are out to lunch on this one. Charley Carp already detailed the main points above.

Balkin's speculations are somewhat crazed -- there is no basis for them, and there are much better clues as to what happened here that fit how court business is typically done, rather than his tortured machinations.

People who don't like the decision are indulging is all sorts of speculation as to what Taylor's motivations were or what was allegedly overlooked in the opinion. Their analysis typically shows a complete ignorance of how litigation works in the trial court. I exchanged comments with Kerr -- he in particular just does not get it.

These law professors spend their careers disecting appellate opinions and law review articles. Those forms of legal writing and that type of analysis are entirely different from a trial court decision. A trial judge is not trying to write a careful treatise that covers all the bases -- only resolve the issues presented by two competing sets of papers. It makes no sense to apply the standards for more formal legal writing to this decision. For example, a law professor may wonder why certain arguments or legal authorities were not discussed by Judge Taylor, and then suppose something improper from that. However, if the point was not briefed or the authority not cited, it is entirely normal that it not be mentioned by the trial judge.

The opinion looks to me like a point by point ruling on the arguments presented; and nothing more. Most of the opinion is devoted to states secrets and standing. Those were the primary arguments of the government, and got the most work. Its no surprise that these sections are the sounder parts of the opinion as the parties' papers fleshed out the details.

The government presented much less in defense of the substantive points. As to facts, this was not a "trial," but a decision based on factual recitations in the opposing papers. The government apparently did very little to dispute factual issues. Kerr in particular faults the opinion for not addressing numerous possible factual concerns even though there is no indication that those concerns were raised in the briefs. How or why the judge should indulge those possibilities is unexplained -- this is where his lack of actual court experience makes him a very poor commentator on this.

So the opinion on the substantive points is cursory and somwhat conclusory. The trial judge only does what seems to be necessary to address the points presented to her -- nothing more. Presuming a vast array of sneaky motives for her resulting opinion is just nonsense.

Finally, this type of decision is reviewed de novo as to all aspects including the factual decisions (since they are based on written evidence rather than live testimony -- the appellate court is just as capable as the trial court to review written testimony and factual recitations). If anything, this explains why the opinion is simplistic -- there is no point to a more lengthy opinion by the trial court.

If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order.

So, does that convince you? If not, I'm curious not so much as to why (I think I can guess) but what standards would have to be met before you were so convinced.

I'll add one more thing, for the non-lawyers. A court looking at a summary judgment motion is supposed to draw all reasonable inferences from the facts in favor of the non-moving party, here the government. Say what you want about what the district court did, this is the same standard that will apply at the Sixth Circuit, as dm shows.

"I'm afraid I've completely backslid on the "results oriented"/"judicial activism" thing since law school. I think judges should seriously consider the possibility that someone is going to get killed or tortured because of their decision. Sometimes the law may require you to do that--but what if the law isn't completely clear? Or what if you've got a precedent that you think is actually wrong about what a treaty or statute says, or dishonestly applies the law to the facts--can you try a little harder to distinguish it? Are you supposed to be completely neutral and indifferent to the fact that a person's life is in your hands?

A lot of this isn't directly relevant to the NSA case, I know; I'm just curious what you think."

I don't mind taking this outside the NSA case, because the post wasn't really about the NSA case. I'm not sure I can agree with you though. Take a hostage situation. From a policy perspective it is almost certainly bad to pay a ransom. Paying ransoms not only subsidizes the behaviour of the criminal you are paying, but it also provides an incentive for kidnapping in the future. But on an individual basis, paying the ransom almost always look good. You save this particular person and lose only money.

I can't construct a case where the judge decides whether or not to ransom, but I had two points in raising the analogy.

First, the judge really shouldn't be constructing a policy-level answer. That ought to be done in the legislature.

Second, even if we allow the judge to craft the policy-level answer, he should be looking at the long term policy of not paying ransoms, not the short term policy of "what happens to this particular person if we don't pay a ransom."

Actually, I'm not totally sure that those are two separate points. In an ideal world we want judges to bring about justice through application of the law to an actual and individual case. Judges should be judging the case before them. Having them make policy divides their focus and undermines their function to deal with this case and provide legal justice to the litigants before them now. The legislature chooses which sacrifices ought to be made, judges apply the choices made elsewhere.

The problem with statements like "Are you supposed to be completely neutral and indifferent to the fact that a person's life is in your hands?" is that you aren't going to be happy with the results when applied to other moral insights enacted by a judge.

You won't be happy with "Are you supposed to be completely neutral and indifferent to the fact that this person is a murderer even though the law says I have to exclude the improperly collected evidence?"

You won't like "Are you supposed to be completely neutral and indifferent to the fact that Walmart provides millions of jobs." (Or I won't like "Are you supposed to be completely neutral and indifferent to the fact that Walmart provides too low-paying jobs").

I won't demand that judges become inhuman in deciding cases. Their internal sense of justice is bound to color things. But I'm not sure they should embrace that. There are real disputes about priorities and what 'justice' is all about. Letting judges just go with that isn't what the rule of law is about. If they want to do that they ought to be legislators.

I don't know anything at all about procedural stuff, and thus about whether or not the judge in this case should have considered this or that argument given the facts as submitted by both parties, the briefs received, etc. But there's a general point that I think is worth making:

Presumably, anyone would agree that there are some things a judge can legitimately do to make her opinion more likely to be upheld. Seb mentioned making clear arguments using good reasoning; presumably this is uncontroversial. (And it is a choice: one might, for instance, spend more time trying to get an opinion right, and to explain convincingly why it was right, in a case in which one particularly wanted one's opinion to be upheld. And the reason for caring might be that one thought that this view of the 4th amendment was important, or it might be that the lives of hostages depended on this answer.)

This is presumably OK because the judge is not in some way trying to circumvent legal processes; she's just providing better reasoning, going above and beyond the call of duty in a recognizable and procedurally correct way. If one tries to protect the lives of hostages by going out of your way to provide especially compelling arguments, you're not distorting the normal procedure, or trying to cheat in some way; you're playing entirely by the rules. And this fact, I think, makes it completely different from trying to save the lives of hostages by omitting a relevant issue in some way that precludes its being considered by appellate courts. (I hope there is no actual way of doing this, but hypothetically.) That would be skewing the process to get a result.

Suppose this distinction is clear, and you grant the general point: that there are ways of trying to get your opinion upheld on appeal that are OK because they play not just by the letter but by the spirit of the rules, and ways that are not OK because even if they play by the letter, they do not play by the spirit of the rules. (Omitting a relevant issue in a way that prevents its being taken up on appeal.) In that case, I think there are some versions of what Balkin is talking about that are OK.

For instance: bringing up issues in a way that would require them to be dealt with in an appeal would seem to me quite different from omitting them in a way that would prevent them from being considered. This still allows all the relevant issues to be considered by an appellate court; at worst, it introduces some issues that are not relevant, and which an appellate court will (hopefully) dismiss as irrelevant.

I think that strategic decisions that basically involve granting an appellate court freedom of action, as opposed to curtailing its freedom of action, tend to be OK; and also that provided one plays by the letter and spirit of the law, strategic decisions are OK. (COnsider: the decision to spend much more time than usual writing a really compelling opinion because one thinks the result really matters. Where 'compelling' does not mean 'well enough written to obscure the real issues involved', or any similar 'eloquence trumps vacuity' thing, but just: explaining the issues and arguments very clearly, so that the reasons why they are compelling are as clear as possible.

I think that this is important: not all strategic decisions are bad, and when they are bad, they're bad because they involve actively disregarding the values that ought to guide a decision.

Hil, I don't disagree, but I'm not sure the not-getting-reversed is that big a deal to judges as they write opinions. Their job is to explain to the parties the basis of the decision against them. IMO, some judges* who become certain that an appeal lies in the future become more sloppy, not less so. Who cares about wasting time on wordsmithing if those eggheads upstairs are just going to write their own version anyway.

* I hasten to add that the judge I worked for was not like this at all.

Slarti: That perhaps the House Democrats are going to do something, anything, anytime soon? Maybe even start talking about it as if they're actually serious about it?

Hm. A Republican President appears to have committed multiple felonies while in office. The Republican party controls both Houses, and does... nothing, thereby appearing to be indifferent to felonies committed by a President of their own party: or just plain indifferent to the kind criminal behavior of which the President stands accused.

The Democratic Party is not, at the moment, in a position to impeach the President. The Republican Party is. Is the Republican party going to prove they take felonies committed by the President seriously? Are they going to support the Democratic Party when (if it's ever possible) the Democratic Party moves to impeach the President for these felonies?

Or is it more likely that House Republicans, and other Republicans, will use any attempt by the Democratic Party to have these felonies taken seriously, as a means of attacking the Democratic Party - without any apparent concern about what this says about the Republican Party's attitude to felonies committed by people in public office?

All in all, Slarti, before you attack House Democrats for "doing nothing", you need to be slating House Republicans about why they're doing nothing. They're in a position to act; House Democrats are not.

I believe the Democrats should say publicly that, barring a bombshell, they have no plans to impeach Bush.

First, a realistic look at Congress shows it is not going to succeed. Even if the most wild-eyed Democratic predictions are correct, they won't have more than around 53 or 54 seats in the Senate, meaning they need more than a dozen Republicans to vote with them to successfully remove the President. Since I cannot imagine even 5 current Republican Senators voting for impeachment without far clearer evidence of wrongdoing than any we have seen, impeachment is not going to do anything positive.

On the other hand, it will do much negative. In all likelihood, any investigations needed for impeachment proceedings will take up most if not all of 2007. Does anyone want an impeachment at the time of the next Presidential primaries?

Further, unless impeachment of Bush were to accompany impeachment of Cheney, it is not going to change any Administration policies.

Finally, I dislike the precedent that would be created that impeaching the President is something regular enough to have been done to two straight Presidents. Regardless of whether one views the Clinton impeachment as justified (and I strongly do not), I think for our government's sake, we should step back from doing it again.

That said, I think firm investigations are needed, both to create laws clearly demarking what is and is not permitted and to make the case that Bush's actions were out of the realm of acceptable political activity. By laying out such a case, and noting whichever Republican is the eventual nominee supported such actions as they were being revealed, it creates a strong dynamic for repudiating Bush by not electing another Republican after him.

The Democratic Party is not, at the moment, in a position to impeach the President

They are, however, in a position to actually publicly discuss what has happened. Is your position that unless you're strong enough to guarantee passage of a particular piece of legislation, silence is the only alternative? How can one persuade if one won't even broach the subject?

Is it that you're content to wait for House Republicans to do something?

I find Balkin’s effort to see a doughnut rather than a hole here to be a trifle desperate. And I see Holsclaw’s revulsion at the realpolitik of Balkin’s take a trifle naïve, although he raises significant issues. His presentation is marred when he descends into the worst kind of fallacious reasoning, ascribing a certain political affiliation to Balkin (“democratic party”) and then – as a fallacy twofer – ascribing Balkin’s realpolitik back to that group en masse. (Disclosure: I hold no brief for the democratic party myself (being something of an old-school red), but I most certainly have a long, long bill of indictment against the GOP.)

I am, say the least, skeptical that Taylor was engaged in the kind of deep-thinking gamesmanship that Balkin speculates that she might have done. Being an anonymous commentator and not a Yale law professor I can indulge some other, more realistic, speculation that (a) Taylor is not exactly an A-list judge to begin with, and (b) she has, shall we say, lost a few miles per hour off her fastball as the years wear on. Let’s just say that she’s likely not being “crazy like a fox.”

Balkin appears to be grasping out for things to find redeemable in the decision. In so doing, he appears to hew to a hard-line “legal realist” position (one with a substantial intellectual pedigree) regarding the business of judging – i.e., the position that judging is a more-or-less wholly instrumental enterprise designed to effect certain desired outcomes, no matter who’s doing it. Realists vary as to the degree to which they believe the customary rules of the game bound or inhibit the enterprise, with strong realists taking the position that all of the rules meta-rules, etc., are completely malleable and others who (like myself, not that it matters much) believe that much of the enterprise of judging is instrumental and barely bounded, but at certain extremes, by the fundamental norms that make the legal system one that a good European Enlightenment-era bourgeois could point to as making a legal system one bound by the rule of law: the basics—no indefinite executive detention, specific charges, an opportunity to confront and rebut evidence against one, no torture. As the great left historian E.P. Thompson

That said, I’m certainly no Pollyanna regarding our legal system (in which I toil by day and, sometimes, night). There are some uncomfortable truths that one must take account of. Frequently, judges do what they can to minimize the chances of reversal on appeal. Many of those measures are perfectly legitimate. (Hell, to some extent a trial or intermediate appellate judge is being irresponsible if she does not at least have one eye out for her appellate audience.) It also is commonplace for district judges –in cases in which the judge, and not a jury, is the fact-finder – to make findings of fact that reduce the chances of reversal, given the deferential review accorded to those findings. (Appellate judges do in fact review findings of fact, they just do so under a more deferential standard of review than that which applies to legal conclusions.) There are dozens of other tricks that trial courts can do to shape the outcome of a case through discretionary rulings on discovery, admissibility of evidence, etc., even when a jury is the trier of fact. And many many judges do so.

All of this is not to say that Holsclaw's concerns are hooey, just that before getting too huffy here, we should pause for a moment to look at the reality of what actually goes on in courthouses every day.

Now all that said, I have two immediate reactions to Balkin and to Holsclaw's reaction to Balkin’s reaction, the decision at hand. The first is that although dressing up what are essentially legal conclusions in the drag of fact finding is a tried and true method of endeavoring to insulate a decision from reversal, that ain't gonna happen here (even if you assume that that's what Taylor was trying to do). That is for a number of reasons. First, there just ain't a lot of facts here to begin with. We've got the bare-bones outlines of the program. We've got some allegations of "chill" from the plaintiffs. And that's about it. This is manifestly a "law" case, not a case involving those intricate things we call "mixed questions of law and fact" for want of a better concept. And we don't exactly have a swearing match between the plaintiffs and the gummint which could be resolved by a credibility resolution (the hardest kind of fact-finding to dislodge). No, what we've got is a law-heavy case. Not much to manipulate one way or the other (other than the law).

Second (and here, I'll out-realist Balkin), when this much is at stake, in a landmark law-heavy case such as this one, you can really forget about appellate courts actually giving the deference to trial court factfinding that they're supposed to give. It just doesn't happen. So even if it were possible in this case to jimmy up some nice fact findings to make reversal more difficult, you can bet that judges who are disposed to see the case come out a different way are not going to let those get in the way (and there are many ways to do that). And you can lay to rest any notion that the trial judge’s evaluation of the sufficiency o the “chill” allegations, for the purposes of establishing standing or otherwise – will be at all outcome-determinative. It’s just too easy to revisit that issue as a “jurisdictional fact” or as a question of what the constitution requires as opposed to a straight fact-finding.

Oy, talk about handing in something that's barely a first draft: Please ignoe the sentence fragments, run-ons, and other grammatical felonies above and accept my apologies. There really is a point lurking in there somewhere if you care to dig it out. Were I more tech-savvy, I would pull the comment and replace it with a better translation from the Hungarian.

Slart: [House Democrats] are, however, in a position to actually publicly discuss what has happened. Is your position that unless you're strong enough to guarantee passage of a particular piece of legislation, silence is the only alternative?

No, but there isn't silence. Conyers has drawn up a list of possible bases for impeachment, and has had a couple of those theater hearings that the Republicans have forced Dems into, by refusing to hold official hearings or call witnesses.

The Dem leadership is far more interested in regaining majority status than in impeachment. I can't really blame them, since majority status is necessary before the issue can even be seriously engaged.

And some of that reluctance to engage the issue is due to the behavior of the Republican party, aided by a lying and sensation-seeking press, during the second Clinton term. They abused the impeachment option, which is supposed to be reserved for serious crimes.

Whether this was the intended result or not, the effect was to take the impeachment option off the table until much more time had passed -- regardless of what high crimes and misdemeanors the next president engaged in.

Republican leaders in Congress have failed to hold the president to account even in the mildest way, much less consider impeachment. This ensures than any raising of accountability issues by Democrats brings out cries of "partisanship! just politics!"

I hope as many as possible of the corrupt, useless collection of Republican enablers in Congress pay the price at the polls, dragged down by the boat anchor of the criminals in the White House.

Slarti, at this point it hardly matters who's convinced that warrantless eavesdropping by the administration is or is not a felony.

What matters is that a federal court has now ruled that it is a felony. The President stands accused, therefore, of committing multiple felonies while in office: and the issue is not "has he in fact committed the acts which a federal court has declared a felony" because, by his own confession, he has.

Now, you appear to be arguing that when a Republican President is accused of committing a felony, it's not the responsibility of the Republican Party to do anything about it, and it's not the responsibility of the majority party controlling both Representatives and Senate to do anything about it. It's the responsibility, you claim, of the Democratic party, or the responsibility of the minority party, to "do something".

My understanding of how checks and balances are supposed to work in US constitutional government may be naive, but what you seem to be saying is that when the Executive Branch is accused by the Judicial Branch of being in breach of the US Constitution, the only responsibility of the Legislative Branch is to be silent.

i won't presume to speak for Slarti, but i got the impression that he's daring the Dems to come out and say, loudly and in public, that Bush deserves to be impeached, and that they'll try to make it happen should they get control. because, after the Clinton fiasco, such a move would probably hurt the Dems more than it would help them. after all, a (slight?) majority of the country sees nothing wrong with the NSA program.

and, the right is trying to scare up a little motivation by warning The Base that the Dems will try for an impeachment, should they get control.

It may not look like it from the outside, but the one commodity that is really short for national politicians is time. There are very few legislative days from now to the end of the term. There are a great many things that even a member of the minority has to do -- including but not limited to running for election. I can totally understand some one (my congressman, for example, who is not an enabler, but also not a martyr) who decides not to spend his time on a quest that cannot work. That's at best -- more likely it gives republicans an opportunity to change the narrative of the election from 'do you want continuation of massive policy failure' to 'do you want to bring acrimony back to Washington -- at a time of war, no less.' The strong anti-acrimony press bias will reinforce the latter. There are, IMO, virtually no votes to be won for Dems from taking this line, and plenty to be lost.

So the crooks get off because the people who have the power to do something about it are just as corrupt, and the other folks are too intimidated to even make much of a deal about it. And Slart blames the people who are intimidated for being so.

i won't presume to speak for Slarti, but i got the impression that he's daring the Dems to come out and say, loudly and in public, that Bush deserves to be impeached, and that they'll try to make it happen should they get control.

Oh, sure: it's all party politics. Slarti has long proved himself to be a loyal Republican. But I'm quite prepared to argue Slarti on the case he's claiming he's trying to make: whose responsibility is it to act when the President of the United States stands accused of multiple felonies by a federal court?

Slarti claims it's not the responsibility of the majority party in both houses of Congress... and I'd love to see him try to justify that while still trying to claim that it's not about party politics, he's just "skeptical".

Slarti, the Dems have been quite verbal about the lawlessness of this President and his administration

Some of the Democrats, yes, and at isolated times. Not enough, perhaps? This is a suggestion, not a recommendation for action.

the right is trying to scare up a little motivation by warning The Base that the Dems will try for an impeachment, should they get control

I'd say it's more accurate that some on the Right are doing that, but I'd also suggest that it's one of those righty scare-tactics that is fairly firmly hooked into reality, even if the spin isn't.

I don't know what the best approach is, and I'm not unaware of the politics of the situation. Just as few of you are unaware of the fact that political expediency trumps right on more than one side of the aisle. Still, the vote to impeach Nixon got a third of the Judiciary Republicans to vote in favor of. Something to consider. If they can get one-third of the Republicans to vote to impeach NOW, what happens? It's pretty clear that DoJ is simply brushing this off, and there's nothing currently on the Judiciary's slate that looks like advancement of the argument for felonies having been committed by the President, NSA, etc.

I also consider that this is a fairly "fresh" decision and that there may be some time in which Democrats may spend deciding what, if anything, to do as a result.

"Still, the vote to impeach Nixon got a third of the Judiciary Republicans to vote in favor of. Something to consider. If they can get one-third of the Republicans to vote to impeach NOW, what happens?"

That Althouse's "critique" of Judge Taylor's opinion is so free of substance is not merely ironic but also entirely unsurprising. As I documented yesterday (based on Althouse's forced admissions), she actually had no idea what even happened in this case until Monday night. The Bush Department of Justice made the decision not to address the merits and substance of the ACLU's constitutional claims despite being ordered to do so by the court -- twice. Althouse has spent the law [sic - last?] week attacking the court for its failure to address arguments that the DoJ never raised -- and now makes the same inane, patently misinformed criticisms of Taylor in The New York Times.

But it is nothing short of humiliating that Althouse had no idea that any of that happened in this case. She hasn't followed this case at all. She has no idea what took place. Just as is the case for her good friend and colleague, Orin Kerr, whom she cites for support in her Op-Ed, Althouse is criticizing Judge Taylor for an "incomplete" opinion because Althouse is entirely ignorant of the fact that the DoJ chose not to advance any substantive arguments on the merits of these claims. She quotes Kerr to accuse Taylor of issuing an "incomplete" opinion, but Kerr -- like Althouse -- simply did not know that the DoJ made no substantive arguments that went to the merits of this lawsuit

I actually think Althouse and Kerr are more than bright enough to understand what is wrong with their analysis -- they are exercising the deceit of just choosing to ignore inconvenient facts that stand in the way of making their point.

Which kind of makes it all look unserious. Time to get serious, perhaps?

Certainly.

This is just one of those occasions where you're outright lying about the position of your opponent.

Am I? Where on this thread have you said that it's now the responsibility of the majority party in both houses? You appear - persistently - to be asserting that it's the responsibility of the minority party. But I may have missed the comment where you said otherwise - where you said it was time for the Republican party, the majority party in both Houses, to "get serious" now Bush stands accused of multiple felonies while in office. If I have, please link to it, and I'll formally apologize for my mistake.

But I suspect that you have made no such comment: in which case, you can apologize for falsely accusing me of lying when I have accurately described the position you are taking.

"Slarti claims it's not the responsibility of the majority party in both houses of Congress"

Slarti doesn't agree with that, but I will.

It isn't the responsibility of any party--neither the majority party nor the minority party. It is the responsibility of the majority of the individual members of Congress. If there are individual members of Congress in either party who believe that there should be an impeachment, they are responsible to push for it. If they don't want to do so because of other political calculations, they are responsible for that decision. Impeachment is one of the very serious responsibilities of Congressmen. The duty to act if you think it is appropriate is not dependent on being in the majority.

Slartibartfast: ?Best get those eyes checked, or cite me an instance where I actually am doing what you claim. Not, to be sure, where I appear to be doing so.

This thread, Slarti. As previously stated. In this thread, you appear to be asserting that it is the responsibility of the minority party in Congress to respond to the President being accused of multiple felonies. You have accused me of lying. I have invited you to prove your accusation by linking to a comment on this thread (or another recent thread, if you can). All you have to do to prove your accusation is to find one comment by you about how it's about time the Republicans in Congress acted now Bush is accused of multiple felonies while in office. If you can't prove your accusation, you may apologize: if you can prove it, I will certainly apologize for an honest mistake.

Sebastian: Impeachment is one of the very serious responsibilities of Congressmen. The duty to act if you think it is appropriate is not dependent on being in the majority.

Compare to the recently discussed duty of low-level soldiers to disobey certain types of illegal orders. Soldiers are putting themselves at much greater personal risk than a Congressman who pushes for impeachment (individual soldiers have much less power than you average Congressman), but the duty is of similar level of importance.

The only body that can formally press charges against the president is the House Judiciary Committee. A member of the minority not only could not get a majority, I doubt he/she could get hearings of any kind, much less a vote.

If a grand jury, more than half of whom in the pay of the Mafia, refuses to indict the don, we don't say that it's the fault of the jurors who didn't take bribes. Or the fault of the people who's kids are killed in a drive-by shooting.

For those officials below the level of the President, the discretion to bring formal charges lies completely and exclusively in the Executive branch. Members of a congressional minority can't do anything but stand on chairs and flap their arms -- which would be great if it might work, but if it isn't going to work, and if doing so interferes with their other work, then it's really not worth a damn.